On September 23, 2020, the FCJ overturned a judgement by the DCA in which the Essen Transportation Authority brought a follow-on damages action against members of the so-called Rail Cartel (“Schienenkartell”).[1] It referred the case back to the DCA and provided further guidance to the DCA in relation to the applicable burden of proof as well as the scope of the passing-on defense.
Industries
FCJ Clarifies Scope of Binding Effect of Cartels Settlement Decisions and Confirms Existence of Presumption of Damages
By Cleary Gottlieb on
On September 23, 2020, the FCJ handed down its much anticipated first judgment in relation to damages claims resulting from the trucks cartel and provided helpful clarifications on some key questions regarding cartel follow-on damages actions.[1]
Court Denies Spanish NCA Status as “Court or Tribunal” for Making Preliminary References (Anesco)
By Cleary Gottlieb on
On September 16, 2020, the Court of Justice ruled on the interpretation of the concept of “court or tribunal” within the meaning of Article 267 TFEU.[1] The Court of Justice held the reference for a preliminary ruling inadmissible, for lack of the referring Spanish competition authority (“CNMC”) constituting a “court or tribunal” for the purpose of Article 267 TFEU.
The French Cour de Cassation Upholds the Paris Court of Appeals’ Judgment in the TDF Abuse of Dominance Case
By Cleary Gottlieb on
On September 16, 2020, the French Cour de cassation upheld the Paris Court of Appeals’ judgment, which had largely confirmed the French Competition Authority’s (the “FCA”) decision in the TDF case.
The Cour de Cassation Quashes the Paris Court of Appeals’ Decision in the SFR/Orange Case on the Fixed Telephony Market for Secondary Homes for the Second Time
By Cleary Gottlieb on
On September 16, 2020, the French Cour de cassation annulled a judgment of the Paris Court of Appeals for the second time in the saga between SFR and Orange. While the Cour de cassation confirmed the existence of a relevant market for fixed telephony for secondary homes, on which Orange is dominant, it ruled that the Paris Court of Appeals had failed to properly assess Orange’s allegedly abusive conduct.
The French Competition Authority Reserves the Right To Refer to the European Commission Transactions That Do Not Reach the National Notification Threshold
By Cleary Gottlieb on
On September 15, 2020, Margaret Vestager announced that the European Commission would, as of mid-2021, accept referrals from national competition authorities for transactions that do not reach any national notification thresholds under Article 22 of Council Regulation (EC) No 139/2004 (“Article 22”).[1] This provision enables a national competition authority to request that the European Commission examine a transaction that does not meet the European Union notification thresholds, but would affect trade between Member States and threaten to significantly affect competition.
The ICA Fines Several Gas Operators at National Level for Failure To Notify a Concentration
By Cleary Gottlieb on
On September 15, 2020, the ICA imposed total fines of approximately €150,000 on Acea S.p.A. (“Acea”), Mediterranea Energia Soc. Cons. a r.l. (“Mediterranea”) and Alma C.I.S. S.r.l. (“Alma” and, together with Acea and Mediterranea, the “Parties”)[1] for failure to notify their acquisition of joint control over Pescara Distribuzione Gas S.r.l. (“Pescara Distribuzione”)[2] before implementing the transaction, in violation of Article 16(1) of Italian Law No. 287/90.[3]
ICA Fines Radio Taxi Companies for an Anticompetitive Agreement in the Market for the Collection and Sorting of Orders for Taxi Services in Naples
By Cleary Gottlieb on
On September 15, 2020, the Italian Competition Authority (the “ICA”) imposed fines on Consortaxi, Taxi Napoli, Radio Taxi Partenope and Desa Radiotaxi (collectively, the “Radio Taxi Companies”) for entering into an anticompetitive agreement in the market for the collection and sorting of orders for taxi services in Naples, in violation of Article 101 of the TFEU (the “Decision”).[1] The Decision was taken after a series of other ICA decisions aimed at investigating and preventing anticompetitive practices of radio taxi companies foreclosing the entry of competing platforms in the market for the collection and sorting of orders for taxi services in other municipalities in Italy.[2]
A Step Forward in the Journey ‘Towards More Effective EU Merger Control’?
By Cleary Gottlieb on
On September 11, 2020, Commissioner Vestager during a speech at a conference[1] for the 30th anniversary of the EU Merger Regulation (“EUMR”),[2] outlined her vision on merger control policy for the upcoming years.[3] In anticipation of the Commission’s long awaited report on its 2016 consultation on the evaluation of procedural and jurisdictional aspects of EU merger control, Commissioner Vestager shed some light on the Commission’s position on (i) notification thresholds; (ii) the simplification of merger filing and review processes; and (iii) its reflections on the substance of merger review in certain sectors.
Block Exemption Troubleshooting: How E-commerce Is Reshaping EU Antitrust Policy on Distribution Agreements
By Cleary Gottlieb on
For more than a decade, the Vertical Block Exemption Regulation (“VBER”)[1] and the accompanying Guidelines on Vertical Restraints (“Guidelines”)[2] have been the essential point of reference for the assessment of resale and distribution arrangements[3] under EU antitrust rules. With the VBER set to expire in 2022, the Commission in 2018 launched a review process to determine whether it should let the regulation lapse, prolong, or revise it.[4] After almost two years of evaluation, stakeholder feedback, public consultations and dialogues with national authorities, on September 9, 2020, the Commission published its report summarizing the outcomes of the evaluation.[5] The report provides a detailed overview of the VBER’s shortcomings and points of strength, and paves the way for the possible introduction of a revised regulation within the next two years.